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10 Common Misconceptions About Adultery and Divorce
Discovering your spouse has committed adultery can be devastating to your marriage. Whether the relationship was already struggling or it has come completely out of the blue, it is normal to feel betrayed and like you can no longer continue with the relationship.
In the past, adultery could be used as a reason for divorce. However, under the new no-fault divorce rules, there is no longer any need to provide a reason for your divorce. While this doesn’t change how hurtful adultery can be, it does make the process of getting a divorce much simpler. The new laws also remove the option for your spouse to contest the divorce, taking away a massive potential point of conflict at an already difficult time.
Changes in divorce law
After coming into effect across England and Wales on 6 April 2022, the new divorce laws have changed many key aspects of legal separation for both marriages and civil partnerships.
Here are some of the key changes you will need to know.
- Applicants no longer need to give a reason (such as adultery) to get a divorce. They must simply include a statement of irretrievable breakdown in their application.
- You can now make a joint application for divorce with your spouse (but you can still make a sole application as well)
- Respondents are no longer able to contest a divorce except for in very limited circumstances.
- There is now a minimum 20 week cooling-off period after a divorce application before the Conditional Order can be issued (the Conditional Order is a key interim step to getting a divorce).
- Outdated legal jargon has been replaced with plain English to make the process more accessible.
For more information regarding the changes to divorce law, read our guide to no-fault divorce.
Adultery and divorce
The following information is now out-of-date. It has been retained for general information purposes only for those who are interested in how adultery used to be used in divorce proceedings under the old divorce laws prior to 6 April 2022.
There are many misconceptions surrounding divorce, particularly where adultery is involved. So, below we have debunked 10 of the most common misconceptions about divorce and adultery for you to consider if you are thinking about petitioning for divorce.
1. You do not have to state any reason to get a divorce
It is understandable that you may want to keep your reasons for divorce private. However, this won’t be entirely possible. In England and Wales, divorce law is currently “fault” based which means you must back up your decision to divorce with an acceptable reason.
There is 1 ground for divorce – the irretrievable breakdown of the marriage. To prove this, you must provide at least 1 of 5 possible facts:
- Unreasonable behaviour
- Separation for 2 years with consent
- Separation for 5 years, no consent needed
To successfully rely on adultery, your spouse must admit to it or you will have to prove it in court.
The Government eventually plans to scrap “fault” divorce in England and Wales, including the need to prove adultery. However, there are currently no timelines on when the law will change.
2. Adultery covers all types of sexual behaviour
Legally, adultery only covers sexual intercourse, which means behaviours such as kissing, webcam, virtual, and “emotional adultery” do not count for the purposes of getting divorced. This makes adultery very hard to prove if your spouse will not admit to it.
3. You can commit adultery with a person of the same sex
The legal definition of adultery only covers sexual intercourse with members of the opposite sex.
In a similar vein, under the current law, you cannot rely on adultery if you are in a civil partnership, even if your partner committed adultery with a member of the opposite sex.
4. Adultery petitions are the most common type of divorce petition
“Unreasonable behaviour” is actually the most common reason to divorce. This requires the petitioner must show that their spouse has behaved so badly it would be unreasonable to expect the petitioner to continue living with them.
As well as being its own individual fact, adultery can also be used an example of unreasonable behaviour. The benefit of relying on unreasonable behaviour instead of adultery is you do not need to prove that sexual intercourse took place. This can be particularly helpful where your spouse will not admit to adultery and you cannot prove there was a sexual relationship.
For this reason, and because it allows spouses to draw attention to a vast number of marital grievances, unreasonable behaviour is often a more popular choice in divorce petitions than adultery.
5. It is not adultery if you have already separated
If you engage in a sexual relationship with someone while you are still legally married, it is technically adultery even if you and your former partner do not live together anymore and are no longer emotionally or physically in a relationship.
6. You can rely on your own adultery to get divorced
You cannot use your own adultery as a reason to get divorced, only the adultery of your spouse.
However, the person your spouse has been unfaithful with does not have to be married for it to be adultery.
7. You will get less money in the divorce if you admit to committing adultery
The procedural aspects of divorce and the financial aspects are completely separate. Although you must give an acceptable reason for your divorce to be successful procedurally, it rarely affects the outcome of the financial settlement.
The law’s approach to a divorcing couple’s finances is to achieve fairness. The starting point is a 50-50 split but in reality, an unequal split may be required to ensure both spouses can continue with their lives in relative financial security. The court takes into account a number of factors when deciding what is fair and one of these is the conduct of each party. However, this will only affect a financial settlement in very rare circumstances.
8. You can petition for divorce for adultery at any time
It is not uncommon for a married couple to try and carry on even after 1 of them has committed adultery. In some situations, spouses are able to work through their issues, but it is also completely understandable to choose to divorce.
However, couples must be careful that they do not time bar themselves. If you continue to live with your spouse for a period of more than 6 months after you found out about the adultery, you will not be able to rely on adultery when making the divorce petition.
9. You have to name the person your spouse committed adultery with
Although there is a section on the divorce petition where you can name the person your spouse committed adultery with, there is no obligation to name them. In fact, you should not fill in this section unless they need to become a “co-respondent” alongside your spouse.
It may feel tempting to name and shame the person your spouse has been unfaithful with, however, naming a co-respondent unnecessarily will only drag out the proceedings and add unnecessary costs.
10. Claiming adultery means I will have to go to court to get divorced
You will not necessarily have to go to court if you put adultery as your reason for getting divorced. If you spouse admits to the adultery and does not defend the petition, a judge will almost certainly allow it to proceed without dragging you into a court battle.
However, as adultery is an accusation which often spurs strong emotional responses, there is always a risk your spouse will want to defend their reputation.
Do you need advice about getting divorced?
If you need advice about getting a divorce after your spouse has committed adultery, our expert divorce solicitors are on hand to help you.
We have specialist expertise helping clients end their marriage as efficiently and painlessly as possible and we can handle every aspect of the process of your behalf, including liaising with your former spouse if you would prefer not to.